July 8, 2011

Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might... nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling....

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default....

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution....

Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?

Oh, how ploddingly boring Professor Tribe is! Vividly creative lawprofs have perceived that the 14th Amendment transformed the President into a dictator, and here comes Tribe with his gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in... empathy.

Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default....

This should come as no surprise as the Obama administration works ceaselessly at self-defeat.

I would expect impeachment proceedings to begin immediately were they to try this dodge. You really can't underestimate the intelligence of the people in this administration though so it would not surprise me a bit if Obama were to try it.

This is like their policy for handling illegal combatants. They just don't think anything through.

We had much this conversation about a year or so ago. I think Freeman Hunt said it best back then about Obama's borrowing/printing penchant and our indebtedness to the Chinese: "Free Chinese ponies for everybody!" LOL!

And Tribe knows that Obama is an ineligible NON natural born Citizen, since he said at the Resolution 511 hearings that natural born Citizens are born "WITHIN the Territory and ALLEGIANCE of a Nation".

Allegiance as per Elk v. Wilkins means totally within the political family of the US w/ no allegiance to any other foreign power. Obama was born British, w/ allegiance to Britain due to birth to a British Subject father, and the British Nationality Act 1948, and is not eligible.Allegiance is a singular concept.

I wonder if this "the president can borrow all he wants" idea was floated by the White House (or its allies) or the opposition. It's so transparently dumb I have to wonder if even the White House would say it.

Under this theory it would be possible for the President to order troops quartered in private houses, in peacetime, to lessen costs. Which law profs should love, given the dearth of good 3rd Amendment cases.

I've been thinking for a while, now, obama wants a race riot. With tanks in the streets.

That's always been the great leftist dream.

Yesterday's bit about Obama and his mom and day ventured into this area.

As I said, a visit to the cafes along Telegraph Avenue or the bars along San Pablo Avenue in Berkeley is very instructive. This is where the radical young white girls go to find a Black Jesus for mating. Obama's mom, although (I don't think) never at Berkeley, was one of those types. Dad was one of those Black Jesus guys.

Always, the hope among these folks is that they can incite the great race war that will lead to the revolution.

Here is what I want to know. The 14th says debt must be authorized by law. But it does not specify what that law should say. Isn't the debt ceiling not a "law"? Hence wouldn't any money spent passed the debt ceiling not be valid as it was not authorized by law?

"With tanks in the streets. That's always been the great leftist dream."

Yea, sure. I have news for you moron lefties. Barack Obama keeps the troops killing brown people overseas because he doesn't want all that angry firepower back here in the United States aimed squarely at his narrow ass.

Zaggs, I was thinking the same thing. The text of Section 4 of the 14th Amendment itself refutes the idea tha the debt ceiling is unconstitutional. By negative implication, it expressly allows for the complete invalidation of public debt that exceeds the statutory limit. (I'm not saying that such invalidation would be wise.)

Fred4Pres said... "Mick is definitely a hedgehog and I support his nomination to the Supreme Court of the United States."

Don't know what that means, but what difference does Tribe's opinion make if he, then Constitutional scholar, will not outright call Obama ineligible, even when his own definition of natural born makes his 'Star Student" ineligible? Does Obama have to obey the Constitution if his very position violates it?

Remember when all the lefties were predicting Bush would declare martial law and become a de facto dictator? Bush showed much more respect for the Constituion than Obama and his cohorts ever entertained. They're more than willing to let Obama follow Caesar's path. Just wait and see.

The Impoundment Control Act clearly specifies the steps President Obama is required to undertake should circumstances prevent the proper execution of appropriated funds.

2 U.S.C. 683 provides that whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided or that such budget authority should be rescinded for fiscal policy or other reasons (including the termination of authorized projects or activities for which budget authority has been provided), or whenever all or part of budget authority provided for only one fiscal year is to be reserved from obligation for such fiscal year, the President shall transmit to both Houses of Congress a special message specifying -

(1) the amount of budget authority which he proposes to be rescinded or which is to be so reserved; (2) any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific project or governmental functions involved; (3) the reasons why the budget authority should be rescinded or is to be so reserved;

(4) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the proposed rescission or of the reservation; and (5) all facts, circumstances, and considerations relating to or bearing upon the proposed rescission or the reservation and the decision to effect the proposed rescission or the reservation, and to the maximum extent practicable, the estimated effect of the proposed rescission or the reservation upon the objects, purposes, and programs for which the budget authority is provided.

If anyone sees the Homeland Security Camps as getting ready for the civil unrest caused by food riots when energy prices skyrocket and dollars are devalued, then I suggest that you do not use Facebook to create your digital dossier for the Google Secret Police.

Just to play the devil's advocate here but doesn't all federal spending emanate from congress?

Paying interest on the debt, cutting checks for social security and everything else are also due to bills passed. So which law takes precedence? Paying entitlement checks as required by legislation or not exceeding the debt limit which is also provided by law.

The Demos are getting desperate. This one's Chuckie Schumer's brainchild IIRC and they know they have to come up with some scheme before the election to make all of this go away, else people will start looking at Little Zero and start calling him, "Nero".

Ann Althouse said...

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in... empathy.

This election will mark a full century that the Democrat Party has waged war on the Constitution.

Thank you, Madame, for taking a stand against the prostituton of the Supreme Law of the Land.

Remember when all the lefties were predicting Bush would declare martial law and become a de facto dictator? Bush showed much more respect for the Constituion than Obama and his cohorts ever entertained. They're more than willing to let Obama follow Caesar's path. Just wait and see.

I don't go in for novel, unfounded, and nakedly partisan interpretations of the Constitution -- like the challenge to the individual mandate.

I'm amused by the idea that it is "novel and unfounded" to think "Congress may regulate commerce between the several states" does NOT mean "Congress can force private citizens to buy stuff from corporations".

Congress has the power to coin money, but only in gold and silver, as evidenced by the Contracts Clause of Article 1 Section 10. No state shall "coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;"

That means that a financial contract is not a contract unless it is made in gold and silver Coin. Only Congress is granted the power to regulate the value of gold and silver (ostensibly by regulating its supply at Fort Knox), but it is gold and silver nonetheless.

Ever since Nixon, the federal government's regulation of money has been unconstitutional.